Mainstream Judicial Nominees

Last week the President’s nominated Goodwin Liu, a professor at UC-Berkeley, for a seat on the Ninth Circuit. I went to law school with Goodwin, and he is exceptionally smart, thoughtful, and fair-minded. Though we do not approach constitutional issues in a similar way, he would be a superb judge.

Consequently, I was very disappointed by the statement released by Senator Jeff Sessions (R), the ranking member of the Judiciary Committee. Of particular note was the Senator’s assertion that Professor Liu is “far outside the mainstream of American jurisprudence,” which was followed up by the not-so-reassuring claim that “his record will be examined carefully and fairly.” The idea that Professor Liu or his scholarship is exceptional for anything other than excellence is absurd.

Moreover, I don’t know what the mainstream of American jurisprudence is, unless that is supposed to mean “Think like Justice Kennedy.” (And if you believe that is the appropriate standard for judges, think again). In truth, there are two currents in the mainstream–liberal and conservative. For example, Chief Justice Roberts and Justice Alito are mainstream conservatives, while Justice Sotomayor is a mainstream liberal. Anyone who fits that category should be confirmed by the Senate unless a valid issue is raised about that candidate’s integrity or experience. Professor Liu easily passes that test.

Unfortunately, there are many organizations and lawyers inside the Beltway whose existence and ability to sustain themselves through fundraising is predicated on stirring up judicial confirmation fights. Since there are not enough Supreme Court nominations to go around, these groups now target circuit nominees. Both sides of the political divide are guilty of this behavior, and they ought to knock it off.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

6 Responses

You say that “Chief Justice Roberts and Justice Alito are mainstream conservatives” and that “Anyone who fits that category should be confirmed by the Senate unless a valid issue is raised about that candidate’s integrity or experience.” Unfortunately Professor Liu did not advocate that standard and argued quite stridently against the confirmation of Justice Alito. While I agree with you that qualified mainstream nominees like Alito, Roberts, Sotomayor, and Liu should be confirmed, it’s not at all surprising that Republicans are going to oppose those on the left who opposed qualified mainstream conservatives. (And, to add fuel to the fire, Liu is Chair of ACS, and Senate Democrats blocked Peter Keisler because of his involvement with the Federalist Society.”(

Where is the surprise and anger coming from, Prof Magliocca? Prof. Liu himself engaged in exactly this form of attack rhetoric. Ever since Bork, this is how the bloodsport gets played — including by Liu. Turnabout is fair play.

Call me crazy, but I’m sure Professor Liu will be asked about his Alito testimony at the confirmation hearing!

Of course, each side has a long list of grievances about judges they liked who were Borked. This destructive cycle will never end unless affirmative steps are taken to break it. And if I’d been blogging a few years ago, I would have said the same thing when conservative judicial nominees were unfairly attacked.

I suspect one reason he was nominated was the dearth of real experience that one would ordinarily expect to see in a Circuit Court nominee – no judicial experience and limited legal practice work of any kind. Post-grad work at Oxford, high-level clerking and years teaching law school may seem impressive to an academic but if that represents the overwhelming extent of your post-law school experience, expect a few questions from the rest of us as to what you bring to the table.

…but, of course, we all know what he brings:

“What we mean by fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.”

That’s the nominee speaking and, no surprise, I believe such drivel to be utter nonsense but at the Ninth Circuit, there is no doubt that that’s mainstream…his presence will only add to their history as the most overturned circuit in the land.

Maryland, I cannot in all honesty understand your issue with Prof. Liu’s statement. Cultural and technological issues are not static by any means and require that the Constitution, the brief and un-prophetic document that it is, be interpreted. Would you have everyone ignore those things that were not conceived by the framers?

Ms. Lewis writes: “Would you have everyone ignore those things that were not conceived by the framers?”

No but I certainly would not turn it over to a bunch a law school grads in black robes. The main advantage that referencing the Framers gives us is that at least that aspect of the Constitution went through some kind of legislative discourse; there was an airing of the issues and it required a public expression of assent. This “living” constitution approach of Mr. Liu presupposes that judges are now uniquely qualified to discern just what the modern application of such a process should be. I categorically reject that – particularly if the likes of Mr. Liu are supposed to represent the “genius” available to do such deep thinking for the rest of us. In other words, the idea that certain longstanding laws and customs can suddenly be discovered to be “unconstitutional” because some judge wants to become the darling of the Harvard Law faculty should be nonsensical.